[2025] PBRA 68
Application for Reconsideration by Snape
Application
1. This is an application by Snape (the Applicant) for reconsideration of a decision of a single panel member not to terminate his licence.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis (a) that the decision contains an error of law, (b) that it is irrational and/or (c) that it is procedurally unfair. This is an eligible case, and the application was made in time.
3. I have considered the application on the papers. These are the dossier consisting of 137 pages, the decision not to terminate and the representations on behalf of the Applicant.
Request for Reconsideration
4. The application for reconsideration is dated 18 March 2025.
5. The grounds for seeking a reconsideration are set out below.
Background
6. The index offence was wounding contrary to section 18 of the Offences against the Person Act. The Applicant was aged 39 years at the time of sentence. He has been recalled twice during the sentence. The facts of the index offence were that the Applicant, in 2008, attacked the victim with an instrument causing injury to the nose and upper body. The dispute was about illicit drugs. The Applicant had a history of violent offences leading to convictions and prison sentences.
Current Termination Review
7. The referral from the Secretary of State (the Respondent) is dated February 2025 and requests the Parole Board to consider whether it would be appropriate to terminate the Applicant’s licence. The Applicant is aged 55.
8. The application was considered at a paper review by a single panel member. A dossier consisting of 137 pages was considered. The dossier included written submisions on behalf of the Applicant.
The Relevant Law
9. The panel correctly sets out in its decision letter dated 28 February 2025 the test for licence termination.
Parole Board Rules 2019 (as amended)
10.Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).
11.Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).
Irrationality
12.The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words “if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”. The same test applies to a reconsideration panel when determining an application on the basis of irrationality.
13.In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court applied this test to parole board hearings in these words at para 116 “the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
14.In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J set out what he described as a more nuanced approach in modern public law which was “to test the decision maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel’s expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied)”. This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282(Admin).
15.As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.
16.It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel.
17.Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the any professionals.
Procedural unfairness
(a) express procedures laid down by law were not followed in the making of the relevant decision;
(b) they were not given a fair hearing;
(c) they were not properly informed of the case against them;
(d) they were prevented from putting their case properly;
(e) the panel did not properly record the reasons for any findings or conclusion; and/or
(f) the panel was not impartial.
Error of law
21.An administrative decision is unlawful under the broad heading of illegality if the panel:
a) misinterprets a legal instrument relevant to the function being performed;
b) has no legal authority to make the decision;
c) fails to fulfil a legal duty;
d) exercises discretionary power for an extraneous purpose;
e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or
f) improperly delegates decision-making power.
22.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.
Other
23.It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion: “there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.” See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “objectively verifiable evidence” of what is asserted to be the true picture.
24.In Oyston [2000] PLR 45, at paragraph 47 Lord Bingham said: “It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship."
25.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.
Reconsideration as a discretionary remedy
26.Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties.
The reply on behalf of the Secretary of State
27.The Respondent offered no representations.
Grounds and Discusssion
28.The application for reconsideration in this case was submitted in a narrative form by the Applicant’s legal adviser. No specific individual grounds were cited. For convenience I have attempted to draw out the individual grounds which appear to be argued in this case and to address them.
Ground 1
29.It is argued that the principles in the case of Osborn & Others [2013] were not followed in this decision. This, it is submitted, led to unfairness in relation to the decision-making by the single-member in relation to termination. The legal adviser cites a decision by Mr Justice Silber, in his capacity as a Parole Board judge, relating to the case of Church.
Discussion
30.So far as the case of Osborn is concerned, with respect to my fellow judge I am not convinced that the case of Osborn can be said to be binding in relation to termination applications. This is for the simple reason that termination was not in existence at the time of the Osborn decision. When the Osborn decision was issued the Supreme Court specifically stated the following “In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions,”. It is clear therefore that Osborn was a case which was directed specifically towards decisions relating to either release or transfer to an open prison. It is also of note that the issue of how and whether Osborn applies to termination applications was not specifically or comprehensively argued in the case of Church (above).
31.A decision relating to termination has demonstrably differing considerations to those applying to release or a transfer to an open prison. I accept that there may be useful general principles in the case of Osborn which can be applied universally to decisions relating to oral hearings, however I am not persuaded, that the case of Osborn is binding in relation to termination applications or that it can be successfully argued that failure to follow the detailed considerations in Osborn amounts to procedural irregularity.
32.Also of note is that the Parole Board guidance in relation to termination applications indicates that the Osborn principles do not apply.
33.Further, reconsideration decisions are not, as noted above, binding and do not set precedents, decisions are expected to be consistent and to apply the correct test. Each decision turns upon its particular facts.
34.In this case, in any event, I am not persuaded that there is an argument for an oral hearing. An oral hearing was not requested by the Applicant himself or his legal adviser. There are detailed submissions made on the Applicant’s behalf which were considered by the single-member. The issues in this case were reasonably contained. The single-member had the added advantage of having directed the release of the Applicant from prison at an earlier hearing. The single-member therefore had a full knowledge of the history of the case. There was a full report from the probation officer supporting the application for termination. Importantly, also, the primary issue in this case was the question of whether the Applicant had demonstrated sufficient evidence that the risk that he poses to partners and others in relationships had been sufficiently addressed. At the time of the parole hearing which led to the Applicant’s release, the probation officer (who was now recommending termination) had indicated that further work was required in relation to managing relationships and that that work could be undertaken in the community. It is clear from the evidence in the termination application report that this work had not been undertaken. This may have been because the Applicant has not been in a further relationship to date. However the position is that a substantial risk factor identified in the initial release decision, in relation to this Applicant, concerned relationships and the risk to partners.
Ground 2 - The panel was not impartial
35.It is argued by the Applicant’s legal adviser that the decision maker in the termination paper decision was not impartial. This appears to be submitted because the decision maker was also involved in the decision to release the Applicant. It is said that this created an absence of impartiality.
Discussion
36.As indicated above, the decision maker in this case (in relation to the termination application), was also the decision maker in relation to the release of the Applicant from prison following a recall. I can see no basis for arguing that this in itself led to a lack of impartiality. The decision maker had in fact directed the release of the Applicant in the first place, and had set out the reasons why it was considered that the Applicant’s risk could be safely managed in the community, subject to the risk management plan. Absent of specific reasons for a complaint of impartiality, I can find no basis for the argument that, because the decision did not favour the Applicant it was not impartial and balanced. I am not therefore persuaded that this point amounts to irrationality or procedural unfairness
Ground 3 - The Member Case Assessment (MCA) member was not objective as he heard the original application
37.It is argued that the MCA member was not objective, again because the member also undertook the original hearing releasing the Applicant.
Discussion
38.For the reasons set out above I can find no evidence of a lack of objectivity. The decision, not to terminate, is argued in detail and the reasons are set out in detail.
Ground 4
39.It is argued on behalf of the Applicant that he was prevented from his case being properly considered because he was not offered an oral hearing.
Discussion
40.In this case there were substantive written submissions in relation to this matter on behalf of the Applicant. There was a dossier and as indicated above the background to the case was well known by the Parole Board member making the decision. The Parole Board member indicated that all the necessary issues were well understood and addressed in the dossier. Again the major issue in this case was the absence of evidence that the Applicant had addressed his risk in relationships and the continuing risk of serious harm to potential partners. All those matters were well documented and understood in the written submissions and dossier. I am not therefore persuaded that the Applicant suffered unfairness as a result of not having the opportunity to give oral evidence at a hearing.
Ground 5
41.It is argued on behalf of the Applicant that the Applicant’s conviction for common assault (which led to a recall to prison in 2022) was not an example of “serious harm”.
Discussion
42.The background to this case was that the Applicant had been recalled to prison following an incident with a female partner. The recall had occurred in 2022. The Applicant had become involved in a physical altercation. That physical altercation had resulted in the Applicant aiming a “high kick” towards his then partner. The kick had occurred in circumstances where he and the partner had been in a dispute. The matter (of assault upon the partner) was heard originally in the magistrates court and then appealed to the Crown Court. On appeal the Applicant’s prison sentence was reduced and the judge at the Crown Court indicated that there had been significant provocation which preceded the kick. However the conviction was maintained, because the Applicant had not been under threat at the time that he delivered the kick. The Crown Court judge concluded that the behaviour crossed the custody threshold, albeit resulting in a very short custodial sentence.
43.The Crown Court judge also, in the sentencing remarks, indicated that it should be recorded that the Applicant was convicted of an offence at the lowest level (common assault) of convictions for assault.
44.It is therefore argued in this application for reconsideration that the Parole Board single-member failed to take account of the fact that this conviction did not amount to serious harm.
45.The single-member in the decision took account of the fact that there had been a comment by the sentencing judge relating to the incident which resulted in the common assault conviction. The outcome of the incident did not result in serious injury or harm to the victim. However the test in relation to termination relates to the risk of serious harm in the future. It is this risk which the single-member was obliged to address. Delivering a kick to a partner in a domestic dispute, and it’s potential risk, was the issue to be addressed and was, in my determination, credible evidence of a potential risk of serious harm.
46.As indicated above, the Applicant had been released from custody following his recall in 2022. It was clear when the decision to direct his release from custody was made, that the risk of serious harm to partners was a substantial consideration. The direction for release and the formulation of the risk management plan incorporated management issues specifically relating to the risk of serious harm in relationships.
47.The Applicant’s probation officer (in the parole board hearing relating to release), had initially submitted a probation report (in 2023) which did not recommend at that time that the Applicant be released. This was because the probation officer believed that work was required to be undertaken in relation to relationships. At that time the probation officer also took the view that relationship behavioural work should be undertaken in prison.
48.By the time of the Parole Board oral hearing in 2024, the probation officer had changed her view. The probation officer revised the release plan on the basis that work (addressing the risk of harm in relationships) would be completed in supervision, after release.
49.The Applicant’s probation officer, for the purposes of the termination application (while recommending termination), does not address or reference the undertaking of any work in connection with relationships and the risk of harm in the realm of relationships. There is therefore no evidence that the Applicant has undertaken any further work (as planned), in supervision, addressing relationships.
50.I have therefore considered the representations relating to the harm which was caused by the common assault conviction. Clearly the victim did not suffer serious harm as a result of this particular incident. However the issue for the single-member, in relation to termination, was the risk of serious harm in the future. It is clear that not only the single-member, but the professionals at the parole release hearing, accepted the fact that there remained a risk to partners, and one which needed to be addressed.
51.As the single-member indicated, in the termination refusal decision, the risk management plan was formulated on the basis of work being done in relation to relationships.
52.I am therefore not persuaded that the fact that the kicking incident did not result, on this occasion in serious harm, amounts to an argument supporting the view that the Applicant does not pose a future risk of serious harm in relationships. As set out above the risk was recognised and formed a substantial part of the release plan when the Parole Board directed the Applicant’s release.
Ground 6
53.It is argued that the probation officer’s recommendation, supporting termination, was not followed. It is submitted that the probation officer had a much better understanding of the Applicant’s risk.
Discussion
54.Panels of the Parole Board, as is well understood, are not obliged to follow the recommendations of any particular professionals. The panel is required to consider the evidence as a whole. The panel is required at all times to explain the reasons for the decision. The decision may not, on every occasion, coincide with the views of any professional. In this case the decision rationale is set out in detail by the single-member.
55.The probation officer’s recommendation and report indicate substantial progress by the Applicant in that he has secured employment and that there had been no recent concerns relating to alcohol or drug misuse. There had also been substance testing. The probation officer’s comment relating to relationships were that there “have been no concerns regarding relationships and (the Applicant) states that he is currently single”.
56.It appears therefore that the planned behavioural work in relation to better relationships and managing relationships, which was included in the probation officers original risk management plan, was not addressed. The single-member, in his decision, clearly indicated the basis of that decision, namely that there was no evidence that the Applicant had demonstrated a reduction in his risk in relationships. The panel member also noted that release would not have been directed without the condition requiring notification of future intimate relationships, thereby providing opportunities for disclosure to future partners and monitoring.
57.It is clear that the single-member set out in detail the reason why the recommendation for termination by the probation service was not supported. The member also took account of the presumption in favour of termination, despite that presumption the single-member took the view that the additional licence conditions relating to disclosure and partnerships remained vital to protect the public from serious harm.
58.I am not persuaded that the decision therefore was irrational in the sense set out above. I therefore do not direct reconsideration.
Decision
59.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused.
HH Stephen Dawson
16 April 2025